Stephen Bainbridge's Journal of Law, Religion, Politics, and Culture

01/30/2012

A remarkably narrow definition of religion

The current debate over the Obama administration's decision to require Catholic-affiliated social services to provide health insurance for employees that includes coverage for abortions has prompted both liberals and libertarians to take a remarkably narrow definition of what constitutes religion. Kevin Drum opines for example that:

I'm just a big ol' secular lefty, so I guess it's natural that I'd disagree. And I do. I guess I'm tired of religious groups operating secular enterprises (hospitals, schools), hiring people of multiple faiths, serving the general public, taking taxpayer dollars — and then claiming that deeply held religious beliefs should exempt them from public policy.

I think Drum is correct here. Religious liberty is an important principle, one that I take very seriously, but it doesn’t mean what Dionne and the Catholic Bishops seems to think it means. Operating a hospital or a school or an adoption agency is not a religious undertaking in the same way that, well, operating a church is, and there’s simply no merit to the argument regulations regarding how you operate an institution that is essentially secular in nature are somehow a violation of religious liberty. More importantly, operating such institutions while taking government money (i.e., Medicare and Medicaid) means accepting at least some regulation about how that money is used.

I agree that taking taxpayer money presents a problem. If the church could avoid this sort of intrusive government regulation simply by refusing taxpayer money, I'd prefer that the church do so. But a lot of these secular elites would prefer that the church be kicked out of the public square as a whole. Consider, for example, the recent debate over the so-called ministerial exception. Anti-church secularists have been trying for years to subject Church organizations like Mataconis' hospital, school, or adoption agency to the anti-discrimination laws so that the Church could not use adherence to its teachings as basis for hiring and firing employees. Fortunately, the Supreme Court upheld a broad (albeit incoherent) version of the ministerial exception.

The basic problem is that to the extent secular elites are willing to begrudgingly tolerate religious liberty at all, they have come to define religion in remarkably narrow terms. Consider the distinction Mataconis draws between "a hospital or a school or an adoption agency" and "a church." I accept Mataconis claim that he values religious liberty, and am happy to exempt him from the secular elites who wish the Church ill, but even so the narrow definition of religion he adopts is precisely the technique by which others have sought to erode the religious liberty of the Catholic Church in particular.

The Catholic Church believes--as an article of faith--that both the Church as an institution and its members as individuals have a religious duty to tend to everyone, not just fellow Catholics. Indeed, the whole point of the Parable of the Good Samaritan is that there is a moral obligation to help those in need without regard to who they are. In response to this teaching, Catholics have run social services like hospitals since the earliest days of the Church's history:

Another characteristic of Christian charity was the obligation and practice of hospitality (Romans 12:13; Hebrews 13:2; 1 Peter 4:9; 3 John). The bishop in particular must be "given to hospitality" (1 Timothy 3:2). The Christian, therefore, in going from place to place, was welcomed in the houses of the brethren; but like hospitality was extended to the pagan visitoras well. Clement of Rome praises the Corinthians for their hospitality (Ep. ad. Cor., c. i) and Dionysius of Corinth for the same reason gives credit to the Romans (Eusebius, Church History IV.23). The bishop's house above all others was open to the traveller who not only found food and shelter there but was provided in case of need with the means to continue his journey. In some cases the bishop was also a physician so that medical attention was provided for those of his guests who needed it (Harnack, "Medicinisches aus d. ältestenKirchengesch." in "Texte u. Untersuchungen" VIII, Leipzig, 1892). The sick were also cared for in the valetudinaria of the wealthier Christians who in the spirit of charity extended hospitality to those who could not be accommodated in the bishop's house. There was thus from the earliest times a well organized system of providing for the various forms of suffering; but it was necessarily limited and dependent on private endeavour so long as the Christians were under the ban of a hostile State. Until persecution ceased, an institution of a public character such as our modern hospital was out of the question. it is certain that after the conversion of Constantine, the Christians profited by their larger liberty to provide for the sick by means of hospitals. But various motives and causes have been assigned to explain the development from private care of the sick to the institutional work of the hospital (Uhlhorn, I, 317 sq.). It was not, at any rate, due to a slackening of charity as has been asserted (Moreau-Christophe, "Du problème de la misère", II, 236; III, 527), but rather to the rapid increase in the number of Christians and to the spread of poverty under new economic conditions. To meet these demands, a different kind of organization was required, and this, in conformity with the prevalent tendency to give all work for the common weal an institutional character, led to the organization and founding of hospitals.

To force Catholics to differentiate between "a hospital or a school or an adoption agency" and "a church" is thus to deny us the right to practice our religion as we see fit.

... it’s precisely the more universal services provided by Catholicism’s institutions that have left them vulnerable to the Obama White House’s current regulatory attack. If they were explicitly sectarian in their community service, they would be eligible for the narrow conscience exemption that the Department of Health and Human Services has afforded to religious bodies. But because they serve non-Catholics as well as Catholics, the government has decided (as Yuval Levin puts it in a fine post today) that they can be “fined for holding views regarding contraception, sterilization, and abortion that are different from the Obama administration’s views.”

In other words, contemporary liberalism offers religious groups a choice. They can try to serve the widest possible population, in which case a liberal administration will set rules that force them to violate their conscience. Or they can serve a narrower one, in which case liberal journalists will sneer at them (and their most generous benefactors) for only caring about their co-religionists.

Hence, as Justice O'Connor put it in her concurrence in McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005):

There is no list of approved and disapproved beliefs appended to the First Amendment-and the Amendment's broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading.

The Amendment's broad terms likewise should not admit the cramped and narrow reading of religious belief reflected in the claim that we must differentiate between "a hospital or a school or an adoption agency" and "a church."

Comments

A remarkably narrow definition of religion

The current debate over the Obama administration's decision to require Catholic-affiliated social services to provide health insurance for employees that includes coverage for abortions has prompted both liberals and libertarians to take a remarkably narrow definition of what constitutes religion. Kevin Drum opines for example that:

I'm just a big ol' secular lefty, so I guess it's natural that I'd disagree. And I do. I guess I'm tired of religious groups operating secular enterprises (hospitals, schools), hiring people of multiple faiths, serving the general public, taking taxpayer dollars — and then claiming that deeply held religious beliefs should exempt them from public policy.

I think Drum is correct here. Religious liberty is an important principle, one that I take very seriously, but it doesn’t mean what Dionne and the Catholic Bishops seems to think it means. Operating a hospital or a school or an adoption agency is not a religious undertaking in the same way that, well, operating a church is, and there’s simply no merit to the argument regulations regarding how you operate an institution that is essentially secular in nature are somehow a violation of religious liberty. More importantly, operating such institutions while taking government money (i.e., Medicare and Medicaid) means accepting at least some regulation about how that money is used.

I agree that taking taxpayer money presents a problem. If the church could avoid this sort of intrusive government regulation simply by refusing taxpayer money, I'd prefer that the church do so. But a lot of these secular elites would prefer that the church be kicked out of the public square as a whole. Consider, for example, the recent debate over the so-called ministerial exception. Anti-church secularists have been trying for years to subject Church organizations like Mataconis' hospital, school, or adoption agency to the anti-discrimination laws so that the Church could not use adherence to its teachings as basis for hiring and firing employees. Fortunately, the Supreme Court upheld a broad (albeit incoherent) version of the ministerial exception.

The basic problem is that to the extent secular elites are willing to begrudgingly tolerate religious liberty at all, they have come to define religion in remarkably narrow terms. Consider the distinction Mataconis draws between "a hospital or a school or an adoption agency" and "a church." I accept Mataconis claim that he values religious liberty, and am happy to exempt him from the secular elites who wish the Church ill, but even so the narrow definition of religion he adopts is precisely the technique by which others have sought to erode the religious liberty of the Catholic Church in particular.

The Catholic Church believes--as an article of faith--that both the Church as an institution and its members as individuals have a religious duty to tend to everyone, not just fellow Catholics. Indeed, the whole point of the Parable of the Good Samaritan is that there is a moral obligation to help those in need without regard to who they are. In response to this teaching, Catholics have run social services like hospitals since the earliest days of the Church's history:

Another characteristic of Christian charity was the obligation and practice of hospitality (Romans 12:13; Hebrews 13:2; 1 Peter 4:9; 3 John). The bishop in particular must be "given to hospitality" (1 Timothy 3:2). The Christian, therefore, in going from place to place, was welcomed in the houses of the brethren; but like hospitality was extended to the pagan visitoras well. Clement of Rome praises the Corinthians for their hospitality (Ep. ad. Cor., c. i) and Dionysius of Corinth for the same reason gives credit to the Romans (Eusebius, Church History IV.23). The bishop's house above all others was open to the traveller who not only found food and shelter there but was provided in case of need with the means to continue his journey. In some cases the bishop was also a physician so that medical attention was provided for those of his guests who needed it (Harnack, "Medicinisches aus d. ältestenKirchengesch." in "Texte u. Untersuchungen" VIII, Leipzig, 1892). The sick were also cared for in the valetudinaria of the wealthier Christians who in the spirit of charity extended hospitality to those who could not be accommodated in the bishop's house. There was thus from the earliest times a well organized system of providing for the various forms of suffering; but it was necessarily limited and dependent on private endeavour so long as the Christians were under the ban of a hostile State. Until persecution ceased, an institution of a public character such as our modern hospital was out of the question. it is certain that after the conversion of Constantine, the Christians profited by their larger liberty to provide for the sick by means of hospitals. But various motives and causes have been assigned to explain the development from private care of the sick to the institutional work of the hospital (Uhlhorn, I, 317 sq.). It was not, at any rate, due to a slackening of charity as has been asserted (Moreau-Christophe, "Du problème de la misère", II, 236; III, 527), but rather to the rapid increase in the number of Christians and to the spread of poverty under new economic conditions. To meet these demands, a different kind of organization was required, and this, in conformity with the prevalent tendency to give all work for the common weal an institutional character, led to the organization and founding of hospitals.

To force Catholics to differentiate between "a hospital or a school or an adoption agency" and "a church" is thus to deny us the right to practice our religion as we see fit.

... it’s precisely the more universal services provided by Catholicism’s institutions that have left them vulnerable to the Obama White House’s current regulatory attack. If they were explicitly sectarian in their community service, they would be eligible for the narrow conscience exemption that the Department of Health and Human Services has afforded to religious bodies. But because they serve non-Catholics as well as Catholics, the government has decided (as Yuval Levin puts it in a fine post today) that they can be “fined for holding views regarding contraception, sterilization, and abortion that are different from the Obama administration’s views.”

In other words, contemporary liberalism offers religious groups a choice. They can try to serve the widest possible population, in which case a liberal administration will set rules that force them to violate their conscience. Or they can serve a narrower one, in which case liberal journalists will sneer at them (and their most generous benefactors) for only caring about their co-religionists.

Hence, as Justice O'Connor put it in her concurrence in McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005):

There is no list of approved and disapproved beliefs appended to the First Amendment-and the Amendment's broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading.

The Amendment's broad terms likewise should not admit the cramped and narrow reading of religious belief reflected in the claim that we must differentiate between "a hospital or a school or an adoption agency" and "a church."